By Walter F. Roche Jr.
The attorney for Saint Thomas
Health told a federal judge Wednesday that she has no choice but to
send dozens of suits stemming from the deadly fungal meningitis outbreak
back to Nashville for trials.
Marcy Greer, the attorney
representing Saint Thomas, told U.S. District Judge Rya W. Zobel that
federal law mandates that the cases filed for the 2012 outbreak victims be tried
Nashville attorney George Nolan, however, said
Zobel does have the authority to decide the appropriate venue and that
should be U.S. District Court in Boston.
The opposing arguments on the proper place for trials filled most of a 75 minute Wednesday hearing in Zobel's Boston courtroom.
While acknowledging there was "some tension" between two different statutes, Nolan said the cases should remain in Boston because of the law and the fact that Zobel had already made key rulings in the litigation. Transfers back to Tennessee would further delay cases dating back to 2012, he said.
"It's now been three years since these people were injured," Nolan said.
He noted that the precise legal question of jurisdiction had yet to be ruled on in the federal district where Zobel's court is located.
Greer, joined by Nashville attorney Chris Tardio, however, said that Zobel had no choice because a related Boston bankruptcy case was recently resolved.
"This court has lost jurisdiction," Tardio stated.
Greer said that Zobel lost jurisdiction as soon as the liquidation plan for the New England Compounding Center was approved in bankruptcy court.
"We don't want to retry these cases," Greer said, warning that trying the cases in Boston could result in second trials being ordered in Nashville.
Earlier in the session, Nashville attorney Ben Gestel charged that action in a separate ongoing case in Nashville could upend decisions already made by Zobel.
In that case an insurance company has asked U.S. District Judge Kevin Sharp to rule that, as a matter of law, victims of the outbreak do not have a right to sue a clinic under Tennessee's product liability statute.
Though the case is focused on suits against a Crossville clinic, a ruling in that case could impact cases against other Tennessee clinics where patients were injected with fungus tainted spinal steroids.
That would include the Saint Thomas Outpatient Neurosurgical Center in Nashville, where most of the Tennessee victims were injected.
The 2012 fungal meningitis outbreak sickened 778 patients at health facilities across the country. Seventy-six of those patients died. State and federal regulators concluded that NECC was the source of the steroids triggering the outbreak.
Fourteen officers, employees and owners of that Framingham company are under indictment as a result of a lengthy grand jury probe. Trials are scheduled to being next Spring.